This matter is before the court on defendant State of California's ("State") Motion To Dismiss and defendant the United States' Motion To Dismiss And For Summary Judgment of plaintiff Michael Casey Carnohan's ("Carnohan") Complaint, captioned "A Civil Action For Loss Of Property." Carnohan, proceeding pro se, alleges federal and state agencies have wrongfully prevented him from owning a firearm. Carnohan filed an Opposition to each Motion. Each defendant filed a Reply. Pursuant to Civil Local Rule 7.1(d)(1), the court finds the issues appropriate for decision on the papers and without oral argument. For the reasons discussed below, the State's Motion is GRANTED and the United States' Motion is GRANTED.

I. BACKGROUND

As recited in the Complaint and documented in Exhibits to the Complaint, Carnohan purchased a firearm from a sporting goods store on January 13, 2004. He failed the required background check, so was not permitted to take possession. The gun dealer received a letter from the state Department of Justice, Firearms Division, instructing the gun not be released to Carnohan because records indicate he is a person not eligible to possess a firearm. Compl. Exh. A. Carnohan disputed the state agency's conclusion his commitment to a mental health facility in 1999, pursuant to CAL. WELF. & INST. CODE § 5250 ("Section 5250"), warranted a firearm ownership restriction under the Gun Control Act, 18 U.S.C. § 922(g)(4). He unsuccessfully appealed that decision to the Federal Bureau of Investigation's ("FBI") National Instant Criminal Background Check System ("NICS") division in September 2004. Compl. Exh. B.

Carnohan filed a federal lawsuit in March 2005 attempting to overturn the FBI's finding that denied him firearm ownership. He named as defendants the United States, the FBI Appeal Unit, the California Firearms Denial Unit, and the State of California, seeking relief from the ban and compensatory damages. The court approved his voluntarily dismissal of that action without prejudice after the federal defendants moved to dismiss and for summary judgment in June 2005. Compl. pp. 8-9. In May 2005, Carnohan filed both a federal claim under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 ("FTCA"), and a state claim with the Government Claims Branch. Compl. Exhs. F, C. He relied on the constitutional right to bear arms, among other things. He included a claim for $582.00 in compensatory damages "computed per receipt of weapon purchased." Compl. Exh. C, pp. 15-17. The State Control Board notified him by letter dated July 26, 2005 that it lacked jurisdiction to consider his claim because the entity that allegedly caused his damages was the FBI through its background checks system. In addition, the claim was rejected as untimely. Compl. Exh. D.

In a letter dated January 9, 2006, the FBI denied Carnohan's FTCA claim as not compensable, on two grounds. Compl. Exh. G. "First, the FTCA does not provide relief for claims alleging a violation of Constitutional rights. 28 U.S.C. § 1346(b)." Id. p. 53. Second, while the FTCA is the exclusive remedy for torts committed by a federal employee acting within the scope of employment, Carnohan presented "no evidence of negligence or a wrongful act or omission on the part of any employee of the FBI that would support" a FTCA claim, nor any evidence of an intentional tort. Id.

Carnohan refiled his federal lawsuit on January 23, 2006. He contends his confinement in a mental health facility pursuant to a CAL. WELF. & INST. CODE § 5250 ("Section 5250") 14-day hold in October 1999, the basis for the denial of authorization for him to possess a gun, was involuntary for only a couple of days. He also argues the commitment order from Dr. Stephen Cole. M.D. with the San Diego County Health And Human Services Agency was inappropriate and in error. For those reasons, he argues he should not be precluded from gun ownership, no 14-day hold under Section 5250 should have the consequence of a lifetime prohibition against owning a firearm, and 18 U.S.C. § 922 (the Gun Control Act) does not support the agencies' denial. He seeks injunctive relief to permit him to possess the gun he purchased and compensatory damages of $12,000 against the State and $12,000 against the United States for a two-year loss of use of "his property." Compl. p. 18.

Carnohan alleges two causes of action: a First Cause of Action based on a purported "misapplication" of 18 U.S.C. § 922(g)(4) ("(g) It shall be unlawful for any person--. . .(4) who has been . . . committed to a mental institution" to receive or possess firearms), and a Second Cause of Action alleging the government violated of 28 U.S.C. § 1346(b) (according exclusive jurisdiction to the district courts of civil actions on claims against the United States for money damages actions as the Federal Tort Claims Act ("FTCA")). He summarizes his Complaint contentions: possession of a firearm he purchased "has been unlawfully withheld from him as a consequence of the denial of a Handgun Certificate by the State of California Firearms Denial Review Unit ('Firearms Unit') and the FBI Appeals Unit ('FBI')" due to their alleged "misinterpretation" of 18 U.S.C. § 922 as applying to a "[California Welfare and Institutions Code §] 5250 14 day hold entered in error by Dr. Cole in the Plaintiff's records for County Mental Health in San Diego California, in October 1999." Compl. p. 8. He identifies the "wrongful act" of the government under 28 U.S.C. § 1346(b) as having "interpreted and applied interstate commerce law 18 U.S.C. 922(e)(4) improperly to Plaintiff as a 'lifetime restriction' against owning a firearm." Compl. p. 17.

The State government defendant moves to dismiss on the ground its sovereign immunity precludes Carnohan's suit. The federal government defendant moves to dismiss and for summary judgment on grounds Carnohan fails to state a claim on which relief can be granted under the FTCA, and the administrative record demonstrates their entitlement to summary judgment as a matter of law because Carnohan's commitment under Section 5250 on a Section 5150 hold is an involuntary commitment disqualifying him from possessing a firearm under 18 U.S.C. § 922(g)(4) without durational limitation.

II. DISCUSSION

A. Legal Standards

1. Motions To Dismiss

A motion to dismiss under FED.R.CIV.P. ("Rule") 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal of a claim under this Rule is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Navarro, 250 F.3d at 732. Dismissal is warranted where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc.,749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law"). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534.

In reviewing a Rule 12(b)(6) motion to dismiss, the court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party, including all reasonable inferences to be drawn from the facts alleged. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). In deciding the motion, the court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the court takes judicial notice. Parrino v. FHP, Inc., 146 F.3d 699, 705-706 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994) overruled on other grounds in Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). Leave to amend is ordinarily denied only when it is clear the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Systems, Inc., 957 F.2d 655, 658 (9th Cir. 1992).

2. Motions For Summary Judgment

Summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party shows there is an absence of evidence to support the non-moving party's claims, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 256(1986). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1305-1306 (9th Cir. 1982). In summary adjudication proceedings, the court does not make credibility determinations or weigh conflicting evidence, as those are determinations for the trier of fact. Anderson, 477 U.S. at 249. Rather, the Court considers the evidence in the light most favorable to the non-moving party. Id. at 255.

To satisfy the shifted burden, the nonmoving party must establish, beyond the pleadings, that there is a genuine issue for trial. Celotex, 477 U.S. at 324; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). To successfully rebut a properly supported motion, the nonmoving party "must point to some facts in the record that demonstrate a genuine issue of material fact and, with all reasonable inference made in the plaintiff[]'s favor, could convince a reasonable jury to find for the plaintiff[]." Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000), citing Rule 56, Celotex, 477 U.S. at 323, and Anderson, 477 U.S. at 249. "If reasonable minds could differ," the motion should be denied. Anderson, 477 U.S. at 250-251. However, summary judgment must be entered "if, under the governing law, there can be but one reasonable conclusion as to the verdict." Id.

B. State's Motion To Dismiss

The State moves for dismissal on grounds this court lacks jurisdiction to decide the dispute and for failure to state a claim upon which relief can be granted. It argues the Eleventh Amendment to the United States Constitution bars an action for damages against a state in federal court without the state's consent: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another state, or by Citizens or Subjects of any Foreign State." It is well settled that protection extends to lawsuits against a state by its own citizens. See Hans v. Louisiana, 134 U.S. 1, 15 (1890); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Kimel v. Florida Bd. of Regents, 528 U.S. 62, 72-73 (2000). The Eleventh Amendment prevents federal courts from exercising jurisdiction in cases where judgments would be paid directly out of state treasury funds. Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 48 (1994); see Riggle v. ...

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